Opinion
J-A07038-18 No. 870 MDA 2017
04-26-2018
COMMONWEALTH OF PENNSYLVANIA v. QUINTEZ TALLEY Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence December 15, 2015
In the Court of Common Pleas of Centre County Criminal Division at No(s): CP-14-CR-0000873-2014, CP-14-CR-0000886-2014 BEFORE: PANELLA, J., OLSON, J., and STEVENS, P.J.E. MEMORANDUM BY STEVENS, P.J.E.:
Former Justice specially assigned to the Superior Court.
Appellant, Quintez Talley, appeals nunc pro tunc from the judgment of sentence entered in the Court of Common Pleas of Centre County following his conviction by a jury on one count of arson, one count of risking a catastrophe, two counts of recklessly endangering another person, and one count of institutional vandalism with respect to offenses he committed on March 3, 2014, as well as one count of arson, five counts of recklessly endangering another person, and one count of institutional vandalism with respect to offenses he committed on March 5, 2014. After a careful review, we affirm.
18 Pa.C.S.A. §§ 3301, 3302, 2705, and 3307, respectively. These charges were docketed in the lower court at number CP-14-CR-0000886-2014.
18 Pa.C.S.A. §§ 3301, 2705, and 3307, respectively. These charges were docketed in the lower court at number CP-14-CR-0000873-2014.
The relevant facts underlying this appeal have been set forth, in part, by the trial court as follows:
Appellant was an inmate at SCI Benner on March 3, 2014, and March 5, 2014. On March 3, 2014, Appellant started a fire in his cell after a disagreement with correctional officers. This fire grew and created a large amount of smoke. Correctional officers were forced to evacuate inmates from other cells for the inmates' safety due to the smoke. Correctional officers also had to enter [Appellant's] cell, which was full of smoke, in order to extinguish the fire. Several of the correctional officers were directed to go to Mount Nittany Medical Center for oxygen treatment due to smoke inhalation. The fire and smoke caused damage to [Appellant's] cell.Trial Court Opinion, filed 7/20/17, at 1-2 (citations to record omitted).
After the March 3, 2014[,] fire, Appellant was placed in another unit within the same facility. Appellant [ ] admitted to setting another fire in his new cell on March 5, 2014. Correctional officers were again forced to enter his smoke-filled cell in order to extinguish the fire and ensure Appellant's safety. This fire caused damage to the cell.
With respect to the March 3, 2014, fire, the Commonwealth filed various charges against Appellant, which were docketed at lower court number CP-14-CR-0000886-2014, and with respect to the March 5, 2014, fire, the Commonwealth filed various charges against Appellant, which were docketed at lower court number CP-14-CR-0000873-2014. The charges were consolidated and, represented by counsel, Appellant proceeded to a jury trial.
At the jury trial, "Appellant openly and willingly admitted. . .to starting fires in his cell on March 3, 2014[,] and March 5, 2014." Id. at 2. The jury convicted Appellant of the offenses indicated supra. On December 15, 2015, Appellant was sentenced to an aggregate of five years to ten years in prison with respect to his convictions at lower court docket number CP-14-CR-0000886-2014, and an aggregate of eight years to sixteen years in prison with respect to his convictions at lower court docket number CP-14-CR-0000873-2014; the sentences to run consecutively. On December 18, 2015, Appellant filed a timely, counseled post-sentence motion, and, following a hearing, the trial court denied, in part, and granted, in part, the motion. Appellant then filed a notice of appeal to this Court.
The trial court informed Appellant of his post-sentence and appellate rights. N.T., 12/15/15, at 21.
Therein, Appellant presented a weight of the evidence claim, a challenge to the sufficiency of the evidence on the basis there was no evidence Appellant intentionally started the fires, and a motion challenging restitution.
Specifically, the trial court denied all of Appellant's requests for relief, except that it vacated the order requiring Appellant to pay $200.00 in restitution to Leon Lobban, an inmate.
By order entered on July 6, 2016, this Court dismissed Appellant's appeal for failure to file a brief. Thereafter, on December 13, 2016, Appellant sought the restoration of his direct appeal rights via a timely PCRA petition, which the PCRA court granted on April 27, 2017. This timely, counseled appeal followed on May 25, 2017.
Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.
On June 2, 2017, the trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement, and Appellant timely complied. In his Rule 1925(b) statement, Appellant averred the following (verbatim):
1) Was the evidence insufficient to support the jury's verdicts of guilty on the following offenses pertaining to the March 3, 2014, fire?
a. Arson Endangering Property, 18 Pa.C.S. 3301(c)(2)
b. Risking a Catastrophe, 18 Pa.C.S. 3302(b)
c. Recklessly Endangering Another Person, 18 Pa.C.S. 2705 (Michael Wortsell)
d. Recklessly Endangering Another Person, 18 Pa.C.S. 2705 (Michael Lefebvre)
e. Institutional Vandalism-Educational Facility, 18 Pa.C.S. 3307(a)(3)
2) Was the evidence insufficient to support the jury's verdicts of guilty on the following offenses pertaining to the March 5, 2014, fire?
a. Arson Endangering Property, 18 Pa.C.S. 3301(c)(2)
b. Recklessly Endangering Another Person, 18 Pa.C.S. 2705 (Brian George)
c. Recklessly Endangering Another Person, 18 Pa.C.S. 2705 (Robert Williamson)
d. Recklessly Endangering Another Person, 18 Pa.C.S. 2705 (Bernard Karabinos)
e. Recklessly Endangering Another Person, 18 Pa.C.S. 2705 (Gregory Buck)
f. Recklessly Endangering Another Person, 18 Pa.C.S. 2705 (Nicholas Lieb)
g. Institutional Vandalism-Educational Facility
3) Such other issues as may be identified after review of the notes of testimony at trial and transcripts of other proceedings. Undersigned counsel hereby reserves the right to supplement
his 1925(b) statement upon receipt and review of these outstanding materials.Appellant's Pa.R.A.P. 1925(b) Statement, filed 6/20/17.
Thereafter, Appellant neither supplemented nor filed a petition seeking to supplement his Pa.R.A.P. 1925(b) statement. On July 20, 2017, the trial court filed a Pa.R.A.P. 1925(a) opinion in which it addressed, generally, Appellant's sufficiency claims.
In his appellate brief, Appellant avers the evidence was insufficient to convict him on seven counts of recklessly endangering another person (namely, seven correctional officers) as there is no evidence that any of the correctional officers suffered serious bodily injury or that Appellant attempted to cause serious bodily injury. He further avers the evidence was insufficient to convict him of risking a catastrophe as the fires caused minimal damage to the prison.
Appellant presents both of his sufficiency claims in one argument section. See Appellant's Brief at 8-11.
In response to Appellant's appellate argument, the Commonwealth suggests that Appellant has waived his sufficiency claims. Specifically, citing to Pa.R.A.P. 1925(b), the Commonwealth avers "Appellant has waived his sufficiency claim[s] by filing an overbroad and generic challenge to all of his convictions without specifying which elements he is challenging." Commonwealth's Brief at 7 (citation omitted). We agree with the Commonwealth.
As this Court has consistently held:
If [the] [a]ppellant wants to preserve a claim that the evidence was insufficient, then the [Rule] 1925(b) statement needs to specify the element or elements upon which the evidence was insufficient. This Court can then analyze the element or elements on appeal. [Where a Rule] 1925(b) statement [ ] does not specify the allegedly unproven elements[,]. . .the sufficiency issue is waived [on appeal].Commonwealth v. Williams , 959 A.2d 1252, 1257 (Pa.Super. 2008) (citation and emphasis omitted). This Court has held that "[s]uch specificity is of particular importance in cases where, as here, the appellant was convicted of multiple crimes each of which contains numerous elements that the Commonwealth must prove beyond a reasonable doubt." Commonwealth v. Garland , 63 A.3d 339, 344 (Pa.Super. 2013).
Here, as indicated supra, in his court-ordered Pa.R.A.P. 1925(b) statement, Appellant listed the twelve charges for which he was convicted with regard to the two separate fires, and he averred generally that the evidence was insufficient to sustain his convictions. Appellant did not identify which elements of the convictions he was challenging. Therefore, we conclude that Appellant's sufficiency of the evidence claims are waived on appeal. See Williams , 959 A.2d at 1257.
In any event, as to the specific sufficiency claims raised by Appellant on appeal, we agree with the trial court that the evidence was sufficient to sustain Appellant's conviction as to risking a catastrophe with regard to the March 3, 2014, fire, as well as recklessly endangering another person (collectively seven correctional officers) with regard to both fires. See Trial Court Opinion, filed 7/20/17, at 4-5 (discussing the evidence presented at trial, in the light most favorable to the Commonwealth, as verdict winner, as to risking a catastrophe); Id. at 5-6 (discussing the evidence presented at trial, in the light most favorable to the Commonwealth, as verdict winner, as to recklessly endangering another person-seven correctional officers).
In his final claim, Appellant avers that his aggregate sentence for both lower court docket numbers is excessive. Specifically, he avers that, given the minimal damage caused by the fires, as well as the trial court's failure to consider adequately Appellant's rehabilitative needs, the aggregate sentences are excessive. Appellant's claim presents a challenge to the discretionary aspects of his sentences. Commonwealth v. Johnson-Daniels , 167 A.3d 17 (Pa.Super. 2017).
When an appellant challenges the discretionary aspects of his sentence, we must consider his brief on this issue as a petition for permission to appeal. See id. Prior to reaching the merits of a discretionary sentencing issue,
[this Court conducts] a four[-]part analysis to determine: (1) whether [A]ppellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [720]; (3) whether [A]ppellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).Commonwealth v. Moury , 992 A.2d 162, 170 (Pa.Super. 2010) (citation omitted).
Here, Appellant filed a timely notice of appeal; however, as the Commonwealth argues, Appellant has not preserved his discretionary sentencing claims. "[I]ssues challenging the discretionary aspects of a sentence must be raised in a post-sentence motion or by presenting the claim to the trial court during the sentencing proceedings. Absent such efforts, an objection to a discretionary aspect of a sentence is waived." Commonwealth v. Lamonda , 52 A.3d 365, 371 (Pa.Super. 2012) (en banc) (citation omitted). In the case sub judice, although Appellant filed a post-sentence motion, he did not raise any discretionary aspects of sentencing claims therein. Moreover, Appellant did not present an objection on this basis during his sentencing hearing. Accordingly, we deem this issue to be waived. See id.
Additionally, we conclude Appellant's discretionary aspects of sentencing claim is waived because he did not present the claim in his court-ordered Pa.R.A.P. 1925(b) statement. See Pa.R.A.P. 1925(b)(b)(4)(vii) ("Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived."). Furthermore, Appellant failed to include a separate Pa.R.A.P. 2119(f) statement in his appellate brief, and the Commonwealth has objected to its omission. See Commonwealth's Brief at 4. Accordingly, Appellant's discretionary sentencing issue is waived on this basis, as well. Commonwealth v. Montgomery , 861 A.2d 304, 308 (Pa.Super. 2004) (citations omitted).
For all of the foregoing reasons, we affirm.
Affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 04/26/18
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